Lead Opinion
For the better part of a century, California law has guaranteed to employees wage and hour protection, including meal and rest periods intended to ameliorate the consequences of long hours. For most of that time, only injunctive remedies were available for violations of meal and rest period guarantees. In 2000, however, both the Legislature and the Industrial Welfare Commission (IWC) adopted for the first time monetary remedies for the denial of meal and rest breaks. (Murphy v. Kenneth Cole Productions, Inc. (2007)
We granted review to consider issues of significance to class actions generally and to meal and rest break class actions in particular. We conclude, contrary to the Court of Appeal, that trial courts are not obligated as a matter of law to resolve threshold disputes over the elements of a plaintiffs claims, unless a particular determination is necessarily dispositive of the certification question. Because the parties have so requested, however, we nevertheless address several such threshold disputes here. On the most contentious of these, the nature of an employer’s duty to provide meal periods, we conclude an employer’s obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.
On the ultimate question of class certification, we review the trial court’s ruling for abuse of discretion. In light of the substantial evidence submitted by plaintiffs of defendants’ uniform policy, we conclude the trial court properly certified a rest break subclass. On the question of meal break subclass certification, we remand to the trial court for reconsideration. With respect to the third contested subclass, covering allegations that employees were required to work “off-the-clock,” no evidence of common policies or means of proof was supplied, and the trial court therefore erred in certifying a subclass. Accordingly, because the Court of Appeal rejected certification of all three subclasses, we will affirm in part, reverse in part, and remand for further proceedings.
Factual and Procedural Background
Defendants Brinker Restaurant Corporation, Brinker International, Inc., and Brinker International Payroll Company, L.P. (collectively Brinker), own and operate restaurants throughout California, including Chili’s Grill & Bar
State law obligates employers to afford their nonexempt employees meal periods and rest periods during the workday. (See Lab. Code, §§ 226.7, 512; IWC wage order No. 5-2001 (Cal. Code Regs., tit. 8, § 11050), hereafter Wage Order No. 5.)
In 2002, the Division of Labor Standards Enforcement (DLSE) launched an investigation into whether Brinker was complying with its obligations to provide rest and meal breaks, maintain proper records, and pay premium wages in the event required breaks were not provided. The DLSE filed suit and eventually settled in exchange for Blinker’s payment of $10 million to redress injuries suffered by employees between 1999 and 2001 and the stipulation to a court-ordered injunction to ensure compliance with meal and rest break laws. In connection with the settlement, Brinker disclaimed all liability.
In the aftermath of the DLSE’s suit, Hohnbaum filed this putative class action, seeking to represent the cooks, stewards, buspersons, wait staff, host staff, and other hourly employees who staff Brinker’s restaurants. The operative complaint, the first amended complaint, alleges in its first cause of action that Brinker failed to provide employees the rest breaks, or premium wages in lieu of rest breaks, due them under law. (See § 226.7; Wage Order No. 5, subd. 12.) The second cause of action alleges Brinker failed to provide employees the meal breaks, or premium wages in lieu of meal breaks, required by law. (See §§ 226.7, 512; Wage Order No. 5, subd. 11.) In the
In aid of a court-ordered mediation, the parties stipulated to the trial court’s resolving the legal issue central to the early lunching theory: whether state law imposes timing requirements on when a meal period must be provided and, if so, what it requires. Hohnbaum contended governing law obligates an employer to provide a 30-minute meal period at least once every five hours. Brinker countered that no such timing obligation is imposed, and an employer satisfies its meal period obligations by providing one meal period for shifts over five hours and two meal periods for shifts over 10 hours.
The trial court generally agreed with Hohnbaum, holding that an employer’s obligations are not satisfied simply by affording a meal period for each work shift longer than five hours, and that affording a meal period during the first hour of a 10-hour shift, with nothing during the remaining nine hours, would violate the obligation to provide a meal period for each five-hour work period. This advisory opinion subsequently was confirmed as a court order. Brinker filed a writ petition in the Court of Appeal, which was denied.
Hohnbaum then moved for class certification, defining the class as “[a]ll present and former employees of [Brinker] who worked at a Brinker owned restaurant in California, holding a non-exempt position, from and after August 16, 2000.”
Brinker opposed class certification, arguing that individual issues predominated. Specifically, Brinker argued that a rest break subclass should not be certified because an employer’s obligation is simply to permit such breaks to be taken, as Brinker did, and whether employees in fact chose to take such breaks is an individualized inquiry not amenable to class treatment. Brinker contended a meal period subclass should not be certified because an employer is obliged only to make meal breaks available and need not ensure that employees take such breaks. Brinker asserted it had complied with its legal obligation to make meal breaks available, many employees took those breaks, and inquiry into why particular employees did not take meal breaks raised individual questions precluding class treatment. Brinker also contended plaintiffs’ early lunching claims were legally unfounded and, in any event, individual issues again predominated, rendering the meal period claims unsuitable for litigation on a class basis. Finally, Brinker argued the off-the-clock subclass should not be certified because no Brinker policy permitted such alteration of time records, Brinker did not suffer or permit off-the-clock work, and any such off-the-clock work would require individualized employee-by-employee proof. Brinker submitted hundreds of declarations in support of its opposition to class certification.
Following a full hearing, the trial court granted class certification, finding that common issues predominated over individual issues: “[Cjommon questions regarding the meal and rest period breaks are sufficiently pervasive to permit adjudication in this one class action. [][] [Brinker’s] arguments regarding the necessity of making employees take meal and rest periods actually point[] toward a common legal issue of what [Brinker] must do to comply with the Labor Code. Although a determination that [Brinker] need not force employees to take breaks may require some individualized discovery, the common alleged issues of meal and rest violations predominate.” A class proceeding was also superior: “Adjudicating plaintiffs’ allegations in one litigation” would be “much more efficient” than resolving it in 60,000 separate administrative or judicial proceedings, as Brinker had suggested.
Discussion
I. Class Certification Principles
Originally creatures of equity, class actions have been statutorily embraced by the Legislature whenever “the question [in a case] is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . . .” (Code Civ. Proc., § 382; see Fireside Bank v. Superior Court (2007)
Here, only a single element of class suitability, and a single aspect of the trial court’s certification decision, is in dispute: whether individual questions or questions of common or general interest predominate. The “ultimate question” the element of predominance presents is whether “the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.” (Collins v. Rocha (1972)
On review of a class certification order, an appellate court’s inquiry is narrowly circumscribed. “The decision to certify a class rests squarely within the discretion of the trial court, and we afford that decision great deference on appeal, reversing only for a manifest abuse of discretion: ‘Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification.’ [Citation.] A certification order generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions. [Citations.]” (Fireside Bank v. Superior Court, supra,
The appellate judgment reversing certification rests on two separate grounds. First, the Court of Appeal held the trial court committed error per se by ruling on certification without first resolving legal disputes over the scope of Brinker’s duties to provide meal and rest periods. Second, it held that any court, upon resolving those disputes, could only have concluded certification was inappropriate. We consider the first of these grounds in part II., post, and the second of them in parts IV. through VI., post. As we shall explain, the first ground does not support the judgment, while the second supports it only partially.
The trial court concluded it could certify a class without resolving disputes over the scope of Brinker’s duty to provide breaks because common questions would predominate even if Brinker’s legal positions were correct. According to the Court of Appeal, this was error: the trial court “was required to determine the elements of plaintiffs’ claims” because the court “could not determine whether individual or common issues predominate in this case, and thus whether a class action was proper, without first determining this threshold issue.” While we agree trial courts must resolve any legal or factual issues that are necessary to a determination whether class certification is proper, the Court of Appeal went too far by intimating that a trial court must as a threshold matter always resolve any party disputes over the elements of a claim. In many instances, whether class certification is appropriate or inappropriate may be determined irrespective of which party is correct. In such circumstances, it is not an abuse of discretion to postpone resolution of the disputed issue.
“The certification question is ‘essentially a procedural one that does not ask whether an action is legally or factually meritorious.’ ” (Sav-On Drug Stores, Inc. v. Superior Court, supra,
We have recognized, however, that “issues affecting the merits of a case may be enmeshed with class action requirements ...” (Linder v. Thrifty Oil Co., supra,
In particular, whether common or individual questions predominate will often depend upon resolution of issues closely tied to the merits. (Coopers & Lybrand v. Livesay, supra,
Such inquiries are closely circumscribed. As the Seventh Circuit has correctly explained, any “peek” a court takes into the merits at the certification stage must “be limited to those aspects of the merits that affect the decisions essential” to class certification. (Schleicher v. Wendt (7th Cir. 2010)
We summarize the governing principles. Presented with a class certification motion, a trial court must examine the plaintiff’s theory of recovery, assess the nature of the legal and factual disputes likely to be presented, and decide whether individual or common issues predominate. To the extent the propriety of certification depends upon disputed threshold legal or factual questions, a court may, and indeed must, resolve them. Out of respect for the problems arising from one-way intervention, however, a court generally should eschew resolution of such issues unless necessary. (See Fireside Bank v. Superior Court, supra,
In support of its conclusion that a trial court must always first decide upon the applicable law and resolve legal issues surrounding each element of a proposed class claim, the Court of Appeal relied principally on our decision in Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906 [
III. Wage Orders and the Labor Code
We turn to the Court of Appeal’s alternate basis for reversing class certification—that if one considers the substance of the parties’ various legal disputes and the elements of Hohnbaum’s claims, one must conclude as a matter of law that common questions do not predominate. In assessing that conclusion, at the parties’ request we examine the merits of their substantive legal disputes. (See Linder v. Thrifty Oil Co., supra,
Nearly a century ago, the Legislature responded to the problem of inadequate wages and poor working conditions by establishing the IWC and delegating to it the authority to investigate various industries and promulgate wage orders fixing for each industry minimum wages, maximum hours of work, and conditions of labor. (Martinez v. Combs, supra, 49 Cal.4th at pp. 52-55; see Cal. Const., art. XIV, § 1 [confirming the Legislature’s authority to establish a commission and grant it legislative and other powers over such matters].) Pursuant to its “broad statutory authority” (Industrial Welfare Com. v. Superior Court (1980)
We apply the usual rules of statutory interpretation to the Labor Code, beginning with and focusing on the text as the best indicator of legislative purpose. (Murphy v. Kenneth Cole Productions, Inc., supra,
In turn, the IWC’s wage orders are entitled to “extraordinary deference, both in upholding their validity and in enforcing their specific terms.” (Martinez v. Combs, supra,
The IWC’s wage orders are to be accorded the same dignity as statutes. They are “presumptively valid” legislative regulations of the employment relationship (Martinez v. Combs, supra,
Here, Wage Order No. 5, governing the public housekeeping industry, applies.
A. The Scope of an Employer’s Duty to Provide Rest Periods
Preliminary to its assessment of the trial court’s certification of a rest period subclass, the Court of Appeal addressed two threshold legal questions: the amount of rest time that must be authorized, and the timing of any rest periods. We consider these same two questions.
1. The rate at which rest time must be authorized and permitted
Brinker’s rest period duties are defined solely by Wage Order No. 5, subdivision 12. To determine the rate at which rest time must be authorized, we begin, as always, with the text. (See Reynolds v. Bement, supra,
The text of the wage order is dispositive; it defines clearly how much rest time must be authorized. Under Wage Order No. 5, subdivision 12(A)’s second sentence, employees receive 10 minutes for each four hours of work “or major fraction thereof.” Though not defined in the wage order, a “major fraction” long has been understood—legally, mathematically, and linguistically—to mean a fraction greater than one-half.
It follows that Wage Order No. 5, subdivision 12(A)’s second sentence defines the rest time that must be permitted as the number of hours worked divided by four, rounded down if the fractional part is half or less than half and up if it is more (a “major fraction”), times 10 minutes. Thus, under the initial calculation called for by this part of the wage order, an employee would receive no rest break time for shifts of two hours or less, 10 minutes for shifts lasting more than two hours up to six hours, 20 minutes for shifts lasting more than six hours up to 10 hours, and so on.
Though under the basic calculation the right to 10 minutes’ rest would accrue for any shift lasting more than two hours, the third sentence of Wage Order No. 5’s rest period subdivision modifies this entitlement slightly. Under the third sentence, “a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3½) hours.” (Wage Order No. 5, subd. 12(A).) Thus, employees working shifts lasting over two hours but under three and one-half hours, who otherwise would have been entitled to 10 minutes’ rest, need not be permitted a rest period. The combined effect of the two pertinent sentences, giving full effect to each, is this; Employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.
The Court of Appeal, however, construed the third sentence of the subdivision as supplying the definition of “major fraction thereof,” reasoning that otherwise the three and one-half hour proviso and the preceding language would be irreconcilable. In its view, employees are entitled to 10 minutes’ rest for shifts of three and one-half hours or more, to 20 minutes’ rest for shifts of seven and one-half hours or more, and so on. An employee working a seven-hour shift thus would be entitled to only 10 minutes’ rest.
Second, the Court of Appeal’s interpretation disregards the use of the word “However” at the beginning of the three and one-half hour proviso, which signals that what follows is a deviation from or exception to the previous rule, not an amplification of it. Though the Court of Appeal perceived an inconsistency, there is nothing inconsistent in reading the three and one-half hour proviso as a specific exception to the general rule that working for a “major fraction” of four hours is sufficient to entitle one to rest time: to earn the first 10 minutes, one must be scheduled for a work shift of at least three and one-half hours, while to earn the next 10 minutes, one must be scheduled to work four hours plus a major fraction, to earn the next, eight hours plus a major fraction, and so on.
The IWC’s explanatory remarks at the time the three and one-half hour proviso was adopted reveal the proviso was intended as just such a limited exception: “ ‘The rest period provision was clarified to indicate that an employee working less than 3½ hours for the entire day would not need to have a rest period.’ ” (IWC meeting mins. (May 16, 1952) p. 34.) The three and one-half hour proviso thus was not inserted as a definition of the phrase “major fraction,” but simply as a limit on the shift length that would warrant any break at all.
Finally, the Court of Appeal attached great significance to a different 1952 change, the substitution in the wage order of “major” for “majority,” but the two terms are essentially synonymous when used as modifiers, and the change appears to have been the product of an idiomatic choice, rather than an intended semantic distinction. (See also IWC wage order No. 5-57, subd. 15(a) (Nov. 15, 1957) [amending toilet requirements to mandate “one toilet for every twenty-five (25) female employees or major fraction thereof’ in lieu of “. . . majority fraction thereof’ with no evident change in meaning].)
2. Rest period timing
Hohnbaum asserts employers have a legal duty to permit their employees a rest period before any meal period. Construing the plain language of the operative wage order, we find no such requirement and agree with the Court of Appeal, which likewise rejected this contention.
Wage Order No. 5, subdivision 12(A) provides in relevant part: “Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period.” Neither this part of the wage order nor subdivision 11, governing meal periods, speaks to the sequence of meal and rest breaks. The only constraint on timing is that rest breaks must fall in the middle of work periods “insofar as practicable.” Employers are thus subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible. At the certification stage, we have no occasion to decide, and express no opinion on, what considerations might be legally sufficient to justify such a departure.
The difficulty with Hohnbaum’s argument that we should read into the wage order an absolute obligation to permit a rest period before a meal period can be illustrated by considering the case of an employee working a six-hour shift. Such an employee is entitled (in the absence of mutual waiver) to a meal period (Wage Order No. 5, subd. 11(A)) and, as discussed above, to a single rest period. Either the rest period must fall before the meal period or it must fall after. Neither text nor logic dictates an order for these, nor does anything in the policies underlying the wage and hour laws
Hohnbaum seeks to overcome the lack of textual support for his position by offering a DLSE opinion letter interpreting the identical language in a different wage order. (Dept. Industrial Relations, DLSE Opn. Letter No. 2001.09.17 (Sept. 17, 2001) [interpreting IWC wage order No. 16-2001 (Cal. Code Regs., tit. 8, § 11160)].) Responding to a hypothetical about an employer who affords employees a meal break at the five-hour mark of an
B. Certification of a Rest Period Subclass
In granting class certification, the trial court accepted without modification the proposed class and subclass definitions. The rest period subclass covers “Class Members who worked one or more work periods in excess of three and a half (3.5) hours without receiving a paid 10 minute break during which the Class Member was relieved of all duties, from and after October 1, 2000 (‘Rest Period Subclass’).”
That the trial court did not apply improper criteria, i.e., decide certification on a basis other than whether superiority of the class action mechanism, commonality of issues, and other relevant factors had been shown, is undisputed. (See Sav-On Drug Stores, Inc. v. Superior Court, supra,
The issue for the trial court was whether any of the rest break theories of recovery advanced by Hohnbaum were “likely to prove amenable to class treatment.” (Sav-On Drug Stores, Inc. v. Superior Court, supra,
In reversing class certification, the Court of Appeal concluded that because rest breaks can be waived—as all parties agree—“any showing on a class basis that plaintiffs or other members of the proposed class missed rest breaks or took shortened rest breaks would not necessarily establish, without further individualized proof, that Brinker violated” the Labor Code and Wage Order No. 5. This was error. An employer is required to authorize and permit the amount of rest break time called for under the wage order for its industry. If it does not—if, for example, it adopts a uniform policy authorizing and permitting only one rest break for employees working a seven-hour shift when two are required—it has violated the wage order and is liable. No issue of waiver ever arises for a rest break that was required by law but never authorized; if a break is not authorized, an employee has no opportunity to decline to take it. As Hohnbaum pleaded and presented substantial evidence of a uniform rest break policy authorizing breaks only for each full four hours worked, the trial court’s certification of a rest break subclass should not have been disturbed.
We observe in closing that, contrary to the Court of Appeal’s conclusion, the certifiability of a rest break subclass in this case is not dependent upon resolution of threshold legal disputes over the scope of the employer’s rest break duties. The theory of liability—that Brinker has a uniform policy, and that that policy, measured against wage order requirements, allegedly violates the law—is by its nature a common question eminently suited for class treatment. As noted, we have at the parties’ request addressed the merits of
V. Meal Period Class Certification
As with the rest break subclass, the Court of Appeal addressed two threshold legal issues before assessing whether certification of a subclass was proper: (1) the nature of an employer’s duty to provide employees with meal periods; and (2) the timing requirements applicable to the provision of meal periods. We likewise begin with these issues.
A. The Scope of the Employer’s Duty to Provide Meal Periods
1. The nature of the duty
We consider what it means for an employer to provide a nonexempt employee a meal period. Hohnbaum contends an employer is obligated to “ensure that work stops for the required thirty minutes.” Brinker, in a position adopted by the Court of Appeal, contends an employer is obligated only to “make available” meal periods, with no responsibility for whether they are taken. We conclude that under Wage Order No. 5 and Labor Code section 512, subdivision (a), an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work.
Historically, an employer’s meal period obligations were governed solely by the language of the IWC’s wage orders, and so we begin there. Under Wage Order No. 5, subdivision 11(A), “[n]o employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes . . .” absent a mutual waiver in certain limited circumstances. The wage order employs no verb between “without” and “a meal period” (e.g., providing, requiring, offering, allowing, granting) to specify the nature of the employer’s duty. Rather, the order identifies only the condition triggering the employer’s duty (employment of any person for at least five hours) and the employee’s concomitant entitlement (a meal period of at least 30 minutes).
Parsed, the order’s text spells out the nature of “ ‘on duty’ ” meal periods and the precise circumstances in which they are permitted. It follows that absent such circumstances, an employer is obligated to provide an “off-duty” meal period. The attributes of such off-duty meal periods are evident from the nature of their reciprocal, on-duty meal periods. An on duty meal period is one in which an employee is not “relieved of all duty” for the entire 30-minute period. (Wage Order No. 5, subd. 11(A).) An off-duty meal period, therefore, is one in which the employee “is relieved of all duty during [the] 30 minute meal period.” (Ibid., italics added.) Absent circumstances permitting an on-duty meal period, an employer’s obligation is to provide an off-duty meal period: an uninterrupted 30-minute period during which the employee is relieved of all duty.
The IWC’s wage orders have long made a meal period’s duty-free nature its defining characteristic. The 1943 version of the wage order governing restaurant employees first introduced the principle: “No employer shall employ any woman or minor for a work period of more than five (5) hours without an allowance of not less than thirty (30) minutes for a meal. If during such meal period the employee can not be relieved of all duties and permitted to leave the premises, such meal period shall not be deducted from hours worked.” (IWC wage order No. 5 NS, subd. 3(d) (June 28, 1943).) The 1947 wage order retained the duty-free concept, but more clearly specified the circumstances under which an employer would be excused from relieving an employee: “An ‘on duty’ meal period will be permitted only when the nature of the work prevents an employee from being relieved of all duty, and such ‘on duty’ meal period shall be counted as hours worked without deduction from wages.” (IWC wage order No. 5 R, subd. 10 (June 1, 1947).) In 1963, the operative language was amended almost to its current form (IWC wage order No. 5-63, subd. 11(a) (Aug. 30, 1963)), save for the requirement that on-duty
As the IWC explained plainly in 1979: “A ‘duty free’ meal period is necessary for the welfare of employees. The section is sufficiently flexible to allow for situations where that is not possible,” i.e., by establishing conditions for an on-duty meal period. “The Commission received no compelling evidence and concluded that there was no rationale to warrant any change in this section, the basic provisions of which date back more than 30 years.” (IWC, Statement as to the Basis for Wage Order No. 5-80 (Sept. 7, 1979); accord, IWC, Statement as to the Basis for Wage Order No. 5-89 (Sept. 7, 1989); IWC statement of findings in support of 1976 wage order revisions (Aug. 13, 1976) p. 14.)
The DLSE’s contemporaneous opinion letters reflect the same understanding. In 1988, the DLSE noted it “has historically taken the position that unless employees are relieved of all duties and are free to leave the premises, the meal period is considered as ‘hours worked.’ ” (Dept. Industrial Relations, DLSE Opn. Letter No. 1988.01.05 (Jan. 5, 1988) p. 1.) Three years later, in response to a question concerning employees working in the field free of direct supervision and control, it advised that if “the employee has a reasonable opportunity to take the full thirty-minute period free of any duty, the employer has satisfied his or her obligation. The worker must be free to attend to any personal business he or she may choose during the unpaid meal period.” (Dept. Industrial Relations, DLSE Opn. Letter No. 1991.06.03 (June 3, 1991) p. 1.)
It was against this background that in 1999 the Legislature first regulated meal periods, previously the exclusive province of the IWC. New
The duty to provide meal periods is not further defined by section 512, but the nature of the duty is evident from surrounding indicia of legislative intent. As discussed, when the Legislature entered the field of meal break regulation in 1999, it entered an area where the IWC and DLSE had, over more than half a century, developed a settled sense of employers’ meal break obligations. In such circumstances, we begin with the assumption the Legislature did not intend to upset existing rules, absent a clear expression of contrary intent. (Industrial Welfare Com. v. Superior Court, supra,
Examination of the relevant legislative history confirms this reading. The origins of section 512 trace to the late 1990’s, when the IWC amended five wage orders to abolish daily overtime, limiting overtime compensation to hours worked in excess of 40 per week, rather than hours worked in excess of eight per day, as had previously been the case. (See Johnson v. Arvin-Edison Water Storage Dist. (2009)
As part of its response to the IWC’s rollback of employee protections, the Legislature wrote into statute various guarantees that previously had
Hohnbaum contends that an employer has one additional obligation: to ensure that employees do no work during meal periods. He places principal reliance on a series of DLSE opinion letters. In 2001, in the course of discussing rest breaks, the DLSE distinguished an employer’s meal break duties and observed that for meal breaks “[an] employer has an affirmative obligation to ensure that workers are actually relieved of all duty, not performing any work, and free to leave the worksite . . . .” (Dept, of Industrial Relations, DLSE Opn. Letter No. 2001.09.17, supra, p. 4, italics added.) In 2002, the DLSE reiterated the point: with regard to meal periods, “an employer has an affirmative obligation to ensure that workers are actually relieved of all duty, not performing any work, and . . . free to leave the employer’s premises.” (Dept, of Industrial Relations, DLSE Opn. Letter No. 2002.01.28 (Jan. 28, 2002) p. 1, italics added; see also Dept, of Industrial Relations, DLSE Opn. Letter No. 2002.09.04 (Sept. 4, 2002) p. 2 [“[A]s a general rule the required meal period must be an off-duty meal period, during which time the employee ... is not suffered or permitted to work . . . .”].)
We are not persuaded. The difficulty with the view that an employer must ensure no work is done—i.e., prohibit work—is that it lacks any textual basis in the wage order or statute. While at one time the IWC’s wage orders contained language clearly imposing on employers a duty to prevent their employees from working during meal periods,
For support, Hohnbaum focuses on the phrase “No employer shall employ any person [without the specified meal period] . . .” (Wage Order No. 5, subd. (11)(A)), contending that “employ” includes permitting or suffering one to work, and so the employer is forbidden from permitting an employee to work during a meal break. Although Hohnbaum is entirely correct about the broad meaning the wage order gives the term “employ” (see Wage Order No. 5, subd. 2(E) [“ ‘Employ’ means to engage, suffer, or permit to work.’ ”]),
What must transpire after the meal break obligation is triggered is covered by later parts of the subdivision relating to waiver, on-duty meal periods (and by negative implication off-duty meal periods), and premium pay. When someone is suffered or permitted to work—i.e., employed—for five hours, an employer is put to a choice: it must (1) afford an off-duty meal period; (2) consent to a mutually agreed-upon waiver if one hour or less will end the shift; or (3) obtain written agreement to an on-duty meal period if circumstances permit. Failure to do one of these will render the employer liable for premium pay. (§ 226.7, subd. (b); Wage Order No. 5, subd. 11(A), (B).) As earlier discussed, because the defining characteristic of on-duty meal periods is failing to relieve an employee of duty, not simply “suffering or permitting” work to continue, it follows that off-duty meal periods are
Proof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay; employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability. On the other hand, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks. (Cicairos v. Summit Logistics, Inc. (2005)
To summarize: An employer’s duty with respect to meal breaks under both section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes, control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law.
On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the
2. Meal period timing
We turn to the question of timing. To determine whether the IWC or the Legislature intended to regulate meal period timing, we consider the language and history of both Labor Code section 512 and Wage Order No. 5. We conclude that, absent waiver, section 512 requires a first meal period no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10th hour of work. We conclude further that, contrary to Hohnbaum’s argument, Wage Order No. 5 does not impose additional timing requirements.
We begin with the text of section 512, subdivision (a). On the subject of first meal periods, it provides: “An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.” This provision could be interpreted as requiring employers either to provide a meal break after no more than five hours of work in a day, absent waiver, or simply to provide a meal break at any point in scheduled shifts that exceed five hours.
The first interpretation is the correct one: the statute requires a first meal period no later than the start of an employee’s sixth hour of work. Section 512, subdivision (b) resolves the ambiguity. It provides: “Notwithstanding subdivision (a), the Industrial Welfare Commission may adopt a working condition order permitting a meal period to commence after six hours of work if the commission determines that the order is consistent with the health and welfare of the affected employees.” The provision employs the language of timing: the IWC may adopt a rule “permitting a meal period to commence after six hours,” i.e., as late as six hours into a shift. {Ibid., italics added.) By beginning with “Notwithstanding subdivision (a),” the provision further indicates that any such timing rule would otherwise contravene subdivision (a). Only if subdivision (a) was intended to ensure that a first meal period would commence sooner than six hours, after no more than five hours of work, would this be true. (See Assem. Republican Caucus, analysis of Sen. Bill No. 88 (1999-2000 Reg. Sess.) as amended Aug. 10, 2000, p. 1 [prior to the addition of § 512, subd. (b), noting that “[e]xisting law requires
We turn to the matter of second meal periods. Section 512, subdivision (a) provides in its second sentence: “An employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.” As with the first sentence of subdivision (a), this language is susceptible of two readings: it could be interpreted as requiring employers to provide a second meal break after no more than 10 hours of work in a day, absent waiver, or as simply requiring employers to provide at least two separate breaks at any point in scheduled shifts that exceed 10 hours. Significantly, however, the language is parallel to subdivision (a)’s first sentence. Hence, if the first sentence was intended to ensure a first meal period no more than five hours into a shift, as subdivision (b) reveals it was, it follows that the second, parallel, sentence should be read to require a second meal period after no more than 10 hours of work in a day, i.e., no later than what would be the start of the 11th hour of work, absent waiver.
Hohnbaum contends section 512 should be read as requiring as well a second meal period no later than five hours after the end of a first meal period if a shift is to continue. The text does not permit such a reading. It requires a second meal after no more than 10 hours of work; it does not add the caveat “or less, if the first meal period occurs earlier than the end of five hours of work.” Because the statutory text is conclusive, we need not consider extrinsic sources on this point. (Beal Bank, SSB v. Arter & Hadden, LLP (2007)
The further issue is whether Wage Order No. 5 imposes any additional requirement. We agree with Brinker that it does not.
The IWC has long been understood to have the power to adopt requirements beyond those codified in statute. (Industrial Welfare Com. v. Superior Court, supra,
The text of Wage Order No. 5 is ambiguous. Subdivision 11(A) provides in relevant part: “No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and employee.” This language may be read to mirror our interpretation of section 512: employees are due a first meal period after no more than five hours of work, a second meal period after no more than 10 hours, and so on. Alternatively, it may be read more restrictively, as allowing an employer to schedule no more than five hours of work between a first meal period and either another meal period or the end of the shift. Thus, for example, an employee given a meal period after three hours of work would become entitled after eight hours of work either to end the shift or to take a second meal period, even though 10 hours of work were not yet complete.
Evidence in the historical record suggests the IWC’s meal period language originally was intended to limit employees to five-hour work intervals without a meal. In 1943, the first version of the current language appeared:
At the time, this provision was understood to apply to the work intervals that conclude shifts, as well as those that begin shifts. In response to a request from a regulated store that, for shifts running from 9:00 a.m. to 6:00 p.m., employees be permitted to lunch between 11:00 a.m. and noon, i.e., with six hours between the end of the meal period and the shift end, the IWC adopted an exception to the five-hour limit, allowing work periods of up to six hours at the end of shifts. (IWC wage order No. 5 NS, subd. 3(d) (June 28, 1943) [“However, if the employee’s work for the day will be completed within six (6) hours, such meal period need not be given.”]; IWC meeting mins. (Jan. 29, 1943) p. 15; IWC meeting mins. (Feb. 5, 1943) p. 19.)
In 1947, the IWC briefly departed from its original formulation, rewriting the timing requirement to apply only to the beginning of each work shift. (IWC wage order No. 5 R, subd. 10 (June 1, 1947) [“No employee shall be required to work more than five (5) consecutive hours after reporting for work, without a meal period of not less than (30) minutes.”].) In 1952, however, it returned to its previous approach, adopting language that has been carried forward to today without significant change.
The IWC’s descriptions of its meal period requirement in the ensuing years similarly reflected an understanding that work periods before and after meals were to be limited to five hours absent waiver. For example, the commission, discussing IWC wage order No. 12-63 (Aug. 30, 1963) (identically worded to Wage Order No. 5 save for a longer permissible period between meals), explained that the meal provision “requires the employer to provide meal periods at intervals of no more than five and one-half hours within the work period.” (Wage Board for IWC Wage Order No. 12—Motion Picture Industry, Rep. & Recommendations (Oct. 21, 1966) p. 6; see also Margaret T. Miller, IWC executive officer, letter to Klaus Wehrenberg (July 13, 1982) p. 2 [under the IWC’s wage orders, “meal periods must be provided ‘at such intervals as will result in no employee working longer than five consecutive hours without an eating period’ ”].)
In 1999, however, the Legislature passed Assembly Bill No. 60 (1999-2000 Reg. Sess.), which among other things repudiated the IWC’s actions in adopting a series of wage orders that had eliminated daily overtime. (Harris v. Superior Court (2011)
The IWC complied with the directive to adopt new wage orders. Pending completion of plenary review, it issued an interim wage order applicable to all industries, including those previously and subsequently covered by Wage Order No. 5. Notably, the interim order mirrored section 512’s language, spelling out that a second meal period was required after 10 hours of work, rather than leaving the timing of second meal periods to implication, as previous wage orders generally had. (IWC interim wage order—2000 (Mar. 1, 2000) subd. 9.)
Thereafter, the IWC held public hearings and adopted revised wage orders for each industry, including the current version of Wage Order No. 5, wage order No. 5-2001. From our review of the text of the various wage orders, the IWC’s official explanations of its intent behind these orders, and the transcripts of the IWC’s numerous hearings, we conclude the IWC abandoned any requirement that work intervals be limited to five hours following the first meal break.
With only limited exceptions, the IWC intended its 2001 wage orders to embrace section 512’s meal period requirements, not impose different ones. Having borrowed the provisions of Assembly Bill No. 60 (1999-2000 Reg. Sess.), including section 512, for its interim wage order, the IWC simply copied the interim wage order’s meal provision into most of its industry-specific wage orders. (IWC public hearing transcript (June 30, 2000) pp. 7-10 [explaining intent to mirror Assem. Bill No. 60 on meals]; see, e.g., IWC wage order No. 2-2001 (Jan. 1, 2001); IWC wage order No. 3-2001 (Jan. 1, 2001); IWC wage order No. 6-2001 (Jan. 1, 2001); Cal. Code Regs., tit. 8, §§ 11020, subd. 11(A), (B), 11030, subd. 11(A), (B), 11060, subd. 11(A), (B).) The IWC explained that under these wage orders, first meals would continue to be assured for employees “working for a period of more than five (5) hours,” while second meal periods would now be provided “in accordance with Labor Code § 512(a).” (IWC, Statement as to the Basis (Jan. 1, 2001) p. 19; see also IWC summary of amends, to wage orders Nos. 1-13, 15 & 17 (Jan. 1, 2001) [except as specified in wage orders Nos. 4, 5 & 12, employees are entitled to “a 30-minute meal period for every 5 hours of work”].) Thus, as to the majority of its 2001 wage orders, the IWC did not intend to impose a different meal period requirement than that spelled out in section 512; specifically, it did not intend to require employers to provide employees a second meal period no more than five hours after a first meal period. These orders and the statute are congruent; under each, a first meal period is guaranteed after five hours of work, while a second meal period is required only after 10 hours of work.
The IWC varied slightly the language of wage orders Nos. 4-2001 and 5-2001. These two orders retained the same subdivision 11(A) language
The IWC had originally modified the meal waiver requirements in wage orders Nos. 4 and 5 in 1993, in response to a health care industry petition to permit its employees to waive a second meal period on longer shifts in order to leave earlier. (See IWC petn. 93-1 (Jan. 25, 1993) pp. 31-32; IWC wage order No. 4-89, subd. 11(C) (as amended Aug. 21, 1993); IWC wage order No. 5-89, subd. 11(C) (as amended Aug. 21, 1993); IWC, Statement as to the Basis of amends, to §§ 2, 3 & 11 of IWC wage order No. 5-89 (June 29, 1993).) The IWC later extended similar waiver rights to all employees covered by these wage orders and three others, but that extension was among many wage order changes repealed by the Legislature in 1999. (IWC, Statement as to the Basis, overtime and related issues (Apr. 11, 1997) pp. 7-8; Stats. 1999, ch. 134, § 21, p. 1829.)
Thereafter, health care representatives persuaded the IWC to at least preserve expanded waiver rights for their industry, along the lines of those originally afforded in 1993. (See IWC, Statement as to the Basis (Jan. 1, 2001) pp. 19-20.) Accordingly, wage orders Nos. 4-2001 and 5-2001 each contain a provision absent from other wage orders, permitting health care employees to waive one of two meal periods on longer shifts. (IWC wage order No. 4-2001 (Jan. 1, 2001) (Cal. Code Regs., tit. 8, § 11040, subd. 11(D)); Wage Order No. 5, subd. 11(D).)
Hohnbaum contends he does not seek to require earlier second meal periods than provided for by section 512 (and, as we have determined, by Wage Order No. 5); rather, he seeks only to interpret Wage Order No. 5, subdivision 11(A) as requiring that first meal periods be timed to prevent work periods, before or after, exceeding five hours. While we agree that the period before a first meal is limited to five hours (see § 512, subd. (a)), we cannot agree that the current version of Wage Order No. 5 limits to five hours the amount of work after a meal.
First, such a reading of subdivision 11(A) in the IWC’s current wage orders would render the subdivision 11(B) guarantee of a second meal period after 10 hours of work, included in most of those same orders, superfluous. (See, e.g., IWC wage order No. 2-2001 (Jan. 1, 2001) (Cal. Code Regs., tit. 8, § 11020, subd. 11(A), (B)).) We avoid such constructions whenever possible. (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2006)
Second, Hohnbaum’s argument rests on the contention that as used by the IWC, “ ‘work period’ is a term of art meaning ‘a continuing period of hours worked,’ ” and thus the five-hour “work period” limit in subdivision 11(A) of the wage orders must preclude more than five hours of continuous work after a meal period. “Work period” is not defined in any wage order. If the IWC’s wage orders once informally adhered to Hohnbaum’s usage, its 2001 orders no longer do. Subdivision 11(B) in most of the current orders refers to a “work period of more than ten (10) hours per day” before a second meal period. (E.g., IWC wage order No. 1-2001 (Jan. 1, 2001) (Cal.
Third, there is no evidence the IWC intended to supplement the requirements of section 512 in the fashion Hohnbaum suggests. The implication is to the contrary. Having received a legislative rebuke, the IWC sought to make its orders track Assembly Bill No. 60 (1999-2000 Reg. Sess.) as closely as possible and expressed hesitance about departing from statutory requirements. (See, e.g., IWC public hearing transcript (May 5, 2000) pp. 52-56.) What departures it made appear to have been conscious choices, expressly identified in the IWC’s Statement as to the Basis, and frequently justified by explicit reliance on its authority to augment the Labor Code. (See IWC, Statement as to the Basis (Jan. 1, 2001) pp. 19-20.) In contrast, the prospect of preserving any meal timing requirement previously implicit in Wage Order No. 5, beyond the requirements of section 512, was never discussed in the agency’s 2000 hearings nor in its publications describing and explaining its 2001 wage orders. In the absence of any such discussion, we conclude the IWC did not intend to preserve Hohnbaum’s posited requirement.
Accordingly, we conclude that Wage Order No. 5 imposes no meal timing requirements beyond those in section 512. Under the wage order, as under the statute, an employer’s obligation is to provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work.
B. Certification of a Meal Period Subclass
We return to the question of certification. The proposed meal period subclass includes all “Class Members who worked one or more work periods in excess of five (5) consecutive hours, without receiving a thirty (30) minute
One aspect of the class definition is notable: It sweeps in not only every Brinker employee who might have a claim under Hohnbaum’s failure to provide meal periods theory, but also every employee who might have had a claim under the theory that a meal period must be provided every five hours. Consequently, because we have concluded neither Wage Order No. 5 nor section 512 imposes such a timing requirement, the class definition as presently drawn includes individuals with no possible claim.
That aspect of the class definition is notable for a second reason. In an unusual action requested by the parties, the trial court before deciding certification issued an explicit ruling on Hohnbaum’s meal timing theory, agreeing with Hohnbaum that section 512 required a meal period every five hours. That the meal subclass definition thereafter incorporated Hohnbaum’s timing theory thus raises the specter that the certification may have been influenced, in part, by the trial court’s legal assumption about the theory’s merits. Any such assumption would have been incorrect, given our ruling on the actual requirements of Wage Order No. 5 and section 512. (See ante, at pp. 1041-1049.) A grant or denial of class certification that rests in part on an erroneous legal assumption is error; without regard to whether such a certification might on other grounds be proper, it cannot stand. (Linder v. Thrifty Oil Co., supra,
Under the unique circumstances of this case, however, we need not decide whether or not the trial court erred. Our subsequent ruling on Hohnbaum’s meal timing theory, solicited by the parties, has changed the legal landscape; whether the trial court may have soundly exercised its discretion before that ruling is no longer relevant. At a minimum, our ruling has rendered the class definition adopted by the trial court overinclusive: The definition on its face embraces individuals who now have no claim against Brinker. In light of our substantive rulings, we consider it the prudent course to remand the question
VI. Off-the-clock Claims Class Certification
The third disputed subclass covers “Class Members who worked ‘off-the-clock’ or without pay from and after August 16, 2000.” As with the rest period subclass, we consider only whether substantial evidence supports the trial court’s conclusion that common questions predominate. None does.
Hohnbaum’s off-the-clock claims are an offshoot of his meal period claims. He contends Brinker required employees to perform work while clocked out during their meal periods; they were neither relieved of all duty nor afforded an uninterrupted 30 minutes, and were not compensated. Hohnbaum further contends Brinker altered meal break records to conceal time worked during these periods.
Unlike for the rest period claim and subclass, for this claim neither a common policy nor a common method of proof is apparent. The rest period claim involved a uniform Brinker policy allegedly in conflict with the legal requirements of the Labor Code and the governing wage order. The only formal Brinker off-the-clock policy submitted disavows such work, consistent with state law.
Moreover, that employees are clocked out creates a presumption they are doing no work, a presumption Hohnbaum and the putative class members have the burden to rebut. As all parties agree, liability is contingent on proof Brinker knew or should have known off-the-clock work was occurring. (Morillion v. Royal Packing Co., supra,
Disposition
For the foregoing reasons, we affirm the Court of Appeal’s judgment as to the off-the-clock subclass. We reverse its judgment as to the rest period subclass. Finally, as to the meal period subclass, we reverse the Court of Appeal’s judgment insofar as it directed the trial court to enter denial of certification with prejudice. We remand to the Court of Appeal with directions to, in turn, remand to the trial court for it to reconsider meal period subclass certification in light of the clarification of the law we have provided.
Cantil-Sakauye, C. J., Kennard, J., Daxter, J., Chin, J., Corrigan, J., and Liu, J., concurred.
Notes
The IWC issues wage orders on an industry-by-industry basis. (Martinez v. Combs (2010)
All further statutory references are to the Labor Code unless otherwise specified.
This claim is not expressly set forth in the complaint, but the trial court approved a stipulated amendment deeming the complaint to include allegations that employees worked off-the-clock during meal periods and Brinker engaged in time shaving.
The putative class is estimated to include just under 60,000 Brinker employees.
As one commentator has put it, “what really matters to class certification” is “not similarity at some unspecified level of generality but, rather, dissimilarity that has the capacity to undercut the prospects for joint resolution of class members’ claims through a unified proceeding.” (Nagareda, Class Certification in the Age of Aggregate Proof (2009) 84 N.Y.U. L.Rev. 97, 131.)
See also, e.g., In re Initial Public Offering Securities Litigation (2d Cir. 2006)
By its terms, Wage Order No. 5 expressly covers restaurant employees such as Hohnbaum and the proposed class members. (See Wage Order No. 5, subd. 2(P)(1).)
We observe that because the IWC’s funding was restricted in 2004 (see Murphy v. Kenneth Cole Productions, Inc., supra,
See, e.g., Department of Commerce v. Montana (1992)
IWC wage order No. 5 R, subdivision 11 (June 1, 1947); IWC wage order No. 5-52, subdivision 12 (Aug. 1, 1952).
“The DLSE ‘is the state agency empowered to enforce California’s labor laws, including IWC wage orders.’ ” (Morillion v. Royal Packing Co. (2000)
See generally Murphy v. Kenneth Cole Productions, Inc., supra,
Other evidence the trial court was entitled to credit suggested employees may not have been permitted even that much rest break time.
We declared IWC wage order No. 5-76 invalid for failure to include an adequate Statement as to the Basis (see California Hotel & Motel Assn. v. Industrial Welfare Com. (1979)
See also Bono Enterprises, Inc. v. Bradshaw, supra,
As enacted in 1999, the text of section 512 consisted of what is now section 512, subdivision (a). (Stats. 1999, ch. 134, § 6, p. 1823.) The original text was recodified without change in 2000 when a new subdivision was added. (Stats. 2000, ch. 492, § 1, p. 3500.)
See, e.g., IWC wage order No. 2, subdivision 1(20) (Apr. 14, 1916) (“no woman or minor shall be permitted to return to work in less than one-half hour’’); IWC wage order No. 3a, subdivision 12 (lune 4, 1928) (same); IWC wage order No. 18, subdivision 10 (Feb. 26, 1932) (same); id., subdivision 11, footnote * (“It is recommended that. . . without exception where [lunch room] space is provided, all women and minors shall be required during the meal period to leave and remain out of the room in which they are regularly employed.”); IWC wage order No. 9 Amended, subdivision 9(a) (Aug. 28, 1933) (“The employer is responsible for seeing that [the meal period] time is taken.”).
Wage Order No. 5’s definition of “employ” was first inserted in 1943. (TWC wage order No. 5 NS, subd. 2(c) (June 28, 1943).) At the time, the IWC explained that “in order to overcome the possibility of subterfuge being resorted to by unscrupulous employers under which subterfuge such employers claim that they did not hire the employee, it becomes necessary to find that ‘employment’ means ‘suffering or permitting’ a woman or minor to perform services . . . .” (IWC meeting mins. (Apr. 14, 1943) p. 4.) The adopted definition was consistent with how the IWC had used the term from its earliest wage orders forward. (See Martinez v. Combs, supra, 49 Cal.4th at pp. 57-58.)
If work does continue, the employer will not be liable for premium pay. At most, it will be liable for straight pay, and then only when it “knew or reasonably should have known that the worker was working through the authorized meal period.” (Dept. Industrial Relations, DLSE Opn. Letter No. 1991.06.03, supra, p. 1; see Morillion v. Royal Packing Co., supra,
The IWC has permitted first meal periods after six hours of work for all employees under wage order No. 12 and those under wage order No. 1 who collectively bargain for such a variance. (IWC wage order No. 12-2001 (Jan. 1, 2001); IWC wage order No. 1-2001, as amended July 1, 2002; Cal. Code Regs., tit. 8, §§ 11120, subd. 11(A), 11010, subd. 11(A)). It has made no similar allowance in the wage order applicable here, Wage Order No. 5.
A third interpretation, that the provision guarantees only the rate at which meal periods are owed and not the timing of them—one meal period for each five full hours worked, to be provided as early or as late as the employer chooses—is advocated by neither party. As our examination of the IWC’s records, post, makes clear, it is also not an interpretation the IWC ever contemplated.
This was consistent with historical practice, as the IWC had long regulated both the number and timing of meals. (See, e.g., IWC wage order No. 2, subd. 1(20) (Apr. 14, 1916) [guaranteeing a “noon day meal”]; IWC wage order No. 4, subd. 1(21) (June 15, 1917) [adding a provision for an “evening meal” on shifts extending into the night]; IWC wage order No. 3a, subd. 12 (June 4, 1928) [providing for an evening meal if work continued beyond 7:30 p.m.].)
In 1963, the IWC clarified that waiver of a meal period required mutual consent, and in 1976 it expanded coverage to men. (See IWC wage order No. 5-63, subd. 11(a) (Aug. 30, 1963); IWC wage order No. 5-76, Subd. 11(A) (Oct. 18, 1976).)
Subdivision 9 provided: “9. MEAL PERIODS, [ft] (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than thirty (30) minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of employer and employee, [ft] (B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than thirty (30) minutes, except that if the total hours worked is no more than twelve (12)
Hohnbaum argues that because the right to waive a second meal period was extended to employees working in excess of eight hours, the IWC must have contemplated employees accruing a right to a second meal before 10 hours of work. The historical record does not support this inference. The language was originally prepared by industry officials, not the IWC. (IWC, Statement as to the Basis (Jan. 1, 2001) p. 20.) In public discussion of the second meal waiver provision, neither in 1993 nor in 2000 did the issue arise of a second meal period being owed five hours after a first meal period. Instead, discussion focused on whether health care employees working 12-hour shifts, as opposed to eight-hour shifts, should be allowed to waive a second meal period. (See, e.g., IWC public hearing transcript (Apr. 7, 1993); IWC public hearing transcript (Jan. 28, 2000); IWC public hearing transcript (Apr. 14, 2000).)
IWC wage order No. 12-2001 stands in contrast. There, the IWC, in response to film industry concerns that section 512 conflicted with industry collective bargaining agreements setting meal breaks at intervals of six hours, preserved language setting first and subsequent meals at six-hour intervals, rather than after five hours of work and 10 hours of work. (See IWC wage order No. 12-2001 (Jan. 1, 2001) (Cal. Code Regs., tit. 8, § 11120, subd. 11(A)); IWC public hearing transcript (May 5, 2000) pp. 44-50.) Had the IWC intended in Wage Order No. 5 to preserve timing requirements additional to those provided by section 512, it could similarly have varied that wage order’s language. It did not.
While Wage Order No. 5 does not include a second meal period guarantee in its subdivision 11(B), that omission is not, as just discussed, the result of any different intent with respect to second meal periods under the wage order. Most other wage orders include both a subdivision 11(A) mirroring Wage Order No. 5’s subdivision 11(A) and a subdivision 11(B) guaranteeing a second meal period after 10 hours, and these provisions must be read to avoid surplusage.
In the ordinary case, proof that statutory or regulatory language was adopted with a particular intent, and that the adopting body did not thereafter express a contrary intent, may suffice to show that the language should be interpreted today in line with that original intent. Hohnbaum develops such an argument, trying to establish the original intent behind Wage Order No. 5, subdivision 11(A)’s language and afford a basis to presume the same intent must hold today. But the inference Hohnbaum relies on—that this language should be read today to mean what it meant when adopted—collapses in the presence of evidence that the IWC in 2000 selected the current language to replicate the rules enacted by the Legislature in 1999, while preserving an expanded right to waive second meal periods for certain workers, and in the absence of evidence that it selected the language to also preserve a limitation on the duration of work after first meal periods.
Brinker’s “Hourly Employee Handbook” states in part: “It is your responsibility to clock in and clock out for every shift you work. . . . [Y]ou may not begin working until you have clocked in. Working ‘off the clock’ for any reason is considered a violation of Company policy. If you forget to clock in or out, or if you believe your time records are not recorded accurately, you must notify a Manager immediately, so the time can be accurately recorded for payroll purposes.”
Concurrence Opinion
I join fully in today’s majority opinion, which I authored. For guidance on the issue we remand, meal period subclass certification, I write separately to emphasize what our opinion does not say. In returning the case for reconsideration, the opinion of the court does not endorse Drinker’s argument, accepted by the Court of Appeal, that the question why a meal period was missed renders meal period claims categorically uncertifiable. Nor could it, for such a per se bar would be inconsistent with the law governing reporting obligations and our historic endorsement of a variety of methods that render collective actions judicially manageable.
Employers covered by Industrial Welfare Commission (IWC) wage order No. 5-2001 (Cal. Code Regs., tit. 8, § 11050) have an obligation both to
While individual issues arising from an affirmative defense can in some cases support denial of certification,
For purposes of class action manageability, a defense that hinges liability vel non on consideration of numerous intricately detailed factual questions, as is sometimes the case in misclassification suits,
Instead, we have encouraged the use of a variety of methods to enable individual claims that might otherwise go unpursued to be vindicated, and to avoid windfalls to defendants that harm many in small amounts rather than a few in large amounts. (See Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at pp. 339-340; Daar v. Yellow Cab Co. (1967)
Liu, J., concurred.
As the Division of Labor Standards Enforcement (DLSE) has explained, even under the less restrictive wage order applicable to agricultural employees, if “a meal period is not taken by the employee, the burden is on the employer to show that the agricultural employee had been advised of his or her legal right to take a meal period and has knowingly and voluntarily decided not to take the meal period. Again, we emphasize, the burden is on the employer.” (Dept. Industrial Relations, DLSE Opn. Letter No. 2003.08.13 (Aug. 13, 2003) p. 2 [interpreting IWC wage order No. 14 (Cal. Code Regs., tit. 8, § 11140)].) To place the burden elsewhere would offer an employer an incentive to avoid its recording duty and a potential windfall from the failure to record meal periods. Both the United States Supreme Court and the courts of this state have rejected such an approach. (See Anderson v. Mt. Clemens Pottery Co. (1946)
See, e.g., Soderstedt v. CBIZ Southern California, LLC (2011)
See, e.g., Soderstedt v. CBIZ Southern California, LLC, supra, 197 Cal.App.4th at pages 146-149; Walsh v. IKON Office Solutions, Inc., supra, 148 Cal.App.4th at pages 1454—1456; but see Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at pages 334—340.